The WA government has introduced legislation amending the Criminal Property Confiscation Act 2000 (WA) to give the CCC power to investigate and litigate Unexplained Wealth matters. This has potentially significant consequences. I consider those effects.
I explain the reasons why it may be appropriate to consider using a secure, encrypted service for communications between lawyer and client. I consider various apps including Wickr, BlackBerry BBM, Signal, WhatsApp across multiple platforms.
The AFP attempted to use the Proceeds of Crime Act to restrain property of innocent victims of money laundering. The circumstances of this case were highly suggestive of ‘cuckoo smurfing’. The WA Supreme Ct ordered the AFP to return the innocent victim’s money. I acted for the successful innocent parties in this matter.
Some notes on how to recover money from WA Police where the client has not been charged and has not been served with a Freezing notice under the Criminal Property Confiscation Act.
Former Assistant US Attorney Stefan Cassella on Civil Asset Forfeiture
There has been a lot of criticism leveled at authorities in many countries, particularly the US, over the use that is made of civil confiscations or proceeds of crime laws.
Without a doubt there have been abuses of these powers, just as there are from time to time abuses of criminal prosecution processes.
In this article a former US Federal prosecutor makes the case for civil forfeiture. It is a well-written piece by an eminently qualified author.
My only caveat is that I think the abuses that the US has seen have been at the State and County, not Federal, level.
Perspectives of an ex Federal Prosecutor who is familiar with Mossack Fonseca on likely responses of Australian authorities (ATO, AFP) to the Panama Papers.
Presentation on Drug Trafficker Cases under the Criminal Property Confiscation Act 2000 (WA) by Edward Greaves. Full text paper available for free download.
I will be presenting at Legalwise Seminars’ Criminal Law Symposium in Perth on 26 March 2015. My presentation is on the topic of Drug Trafficker cases under the Criminal Property Confiscations Act 2000 (WA).
Australia has recently undergone a Financial Action Task Force (FATF) evaluation. A recent Radio National program considers AUSTRAC’s emphasis on education rather than regulation and enforcement and analyses its effectiveness.
The High Court stayed Proceeds of Crime action pending the criminal trial in Commissioner of AFP v Zhao & Jin handed down 12 February 2015. The judgment considers sections 319 and 266A of the Proceeds of Crime Act 2002.
The Western Australian Court of Appeal has delivered an important judgment, R v Host, which considers the proper approach to sentencing an offender whose property has been the subject of orders made under the Proceeds of Crime Act 2002 (Cth). The Court gave detailed consideration to s 320 Proceeds of Crime Act 2002 (Cth). It allows for a sentence to be reduced where the offender has cooperated with proceeds of crime authorities.
Criminal Property Confiscation and Proceeds of Crime CPD – 6 November 2014
The Law Society of Western Australia is offering a CPD (CLE) seminar on Confiscations and Proceeds of Crime to be held in Perth on 6 November 2014. This seminar will include a detailed look at both the Proceeds of Crime Act 2002 (Cth) and the Criminal Property Confiscation Act 2000 (WA).
The seminar will be chaired by the Hon Justice Hall. Darryl Ryan from Chelmsford Legal will give an overview of each Act. Michael Seaman from the Office of the Director of Public Prosecutions Western Australia will focus specifically on the rights of third party claimants under the Criminal Property Confiscation Act 2000 (WA).
My session will explore the typical interlocutory steps in litigating a matter under either the Criminal Property Confiscation Act 2000 (WA) or the Proceeds of Crime Act 2002 (Cth). I am approaching the issues from the perspectives of lawyers acting for a suspect or a third party (be it a spouse, a bank, a business partner, a tenant or otherwise). Rather than focusing on what the legislation says, I will be looking at what you need to do. For instance: tips on taking initial instructions, and how to get paid.
For more information, view the information sheet from the Law Society of Western Australia or book online.
Last Week Tonight with John Oliver: Civil Forfeiture (HBO)
A US comedy sketch takes a look at civil forfeiture.
Some of the risks identified in the programme are present in some Australian laws. There is however less direct incentivising of Australian Police. In the US some county forces can keep up to 100% of the property they seize. That is not the case in Australia.
The presumption in favour of forfeiture is found in some Australian laws, including the Criminal Property Confiscation Act 2000 (WA). This means the onus is on the owner of the property to show the property should not be confiscated, rather than the other way around.
Courts have applied Lee v R with some interesting results. Analysis of recent decisions considering X7 v ACC, Lee v NSW Crime Commission and Lee v The Queen, including Bartlett v The Queen and Zhao & Jin v Commissioner of the Australian Federal Police.
Proceeds of Crime and Confiscation legislation is designed to deprive offenders of ill-gotten gains. Where the legislation is silent on the issue of victims rights, victims may be able to seek equitable relief.
The High Court granted special leave in Henderson v Queensland on 16 May 2014. If the appeal is successful it will amount to a significant erosion of the reverse onus (in relation to lawful origin) found in most Australian confiscation statutes.
The High Court in Lee v The Queen has quashed convictions on the basis that compulsory confiscations examination transcripts were improperly shared with prosecutors. The Court unanimously held there had been a miscarriage of justice and has ordered a retrial.
The NSW Crime Commission disclosed transcript of Mr Lee’s compulsory examination to the Police and the Crown Prosecutor in his criminal trial. Mr Lee was convicted. The New South Wales Court of Criminal Appeal dismissed his appeal against conviction. He appealed to the High Court and it is that decision which is now to be handed down on 21 May 2014.
The High Court has upheld the validity of NT legislation that is substantially modelled upon the Criminal Property Confiscation Act 2000 (WA). The door appears closed on Chapter III / Kable challenges to the WA Act but other challenges may be open.